How many wiretaps? Ssh, that’s private

Share this:

Two senators have been trying to find out how many Americans’ phone calls and e-mails the National Security Agency has intercepted without a warrant, under authority that Congress is now being asked to renew. The NSA doesn’t want to tell them and has come up with a novel explanation for its refusal:

It would violate privacy. Not the wiretapping, but revealing, or even estimating, how often it’s been done. It would also cost so much, in time and money, that it would probably interfere with the mission of the NSA, which is mostly classified in any event.

This exercise in non-disclosure puts the Obama administration’s stamp on a program that originated with President George W. Bush. After the Sept. 11, 2001, terrorist attacks, Bush secretly authorized the NSA to eavesdrop on communications between Americans and suspected foreign terrorists without the court warrants that Congress had required in a 1978 law, a program he acknowledged when the New York Times revealed its existence four years later.

Bush claimed initially that he had inherent constitutional authority to bypass the law, an assertion rejected by a San Francisco federal judge in a case that’s still ongoing. Litigation also disclosed the existence of computer equipment at an AT&T office in San Francisco that the NSA may have used for wholesale interceptions of e-mail traffic. Meantime, Bush won congressional approval in 2008 of the FISA Amendments Act, which legalized the wiretapping program, shielded telecommunications companies from liability for their past cooperation with the NSA, and authorized future surveillance based on periodic, blanket reviews by the secretive Foreign Intelligence Surveillance Court. Sen. Barack Obama, who had criticized the wiretap program when it was first disclosed, voted for the law.

The FISA Amendments Act expires at the end of this year and is up for renewal. About a year ago, Democrats Ron Wyden of Oregon and Mark Udall of Colorado, both members of the Senate’s intelligence oversight committee, started asking administration officials how often the surveillance authority had been used. This week they got a reply from I. Charles McCullough, inspector general of the Office of the Director of National Intelligence, which oversees the NSA, the CIA and the rest of the government’s spy apparatus.

As first reported by wired.com’s Danger Room blog, McCullough told them he had referred the request to the NSA’s inspector general and deferred to his conclusion that “obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA’s mission.” The inspector further stated, McCullough said, “that his office and NSA leadership agreed that an (inspector general) review of the sort suggested would itself violate the privacy of U.S. persons.”

A couple of observations: The NSA’s budget, the source of the “additional resources,” is classified, but the agency is larger than the CIA, and it’s reportedly building a $2 billion data collection and analysis center in Utah. And Wyden and Udall didn’t ask for the names or descriptions of wiretap targets or the subject of any surveillance, just an estimate of how many times it’s happened, information that’s now said to be too private for public consumption.

Wyden says the explanation has helped convince him to oppose any renewal of the NSA’s authority to eavesdrop without getting individual court warrants.

“If no one will even estimate how many Americans have had their communications collected under the law,” the senator said, “then it is all the more important that Congress act … to keep the government from searching for Americans’ phone calls and e-mails without a warrant.”